The Insurrection Act is a dangerous centuries-old federal statute that authorizes the president, with few restraints, to deploy the U.S. military inside the United States to suppress threats the president perceives to the constitutional order. Commentators have recently proposed tightening the law following reports that former President Donald Trump and his advisers are planning to use it aggressively for law enforcement and to quell domestic disturbances if Mr. Trump is once more elected.
This focus on Trump is understandable but inadequate in capturing the compelling case for reform. It has been clear for decades that the poorly drafted and antiquated law needs revision. There is an opportunity in 2024 to make targeted changes to the statute’s main flaws — and, critically, in a way that both parties would have good reason to support.
The Insurrection Act empowers the president to order the armed forces and state militias into action within the United States and against American citizens in numerous ill-defined circumstances. The president can, for example, deploy military force where states call upon federal assistance in quelling an “insurrection”; or as the president “considers necessary” to enforce federal law against “obstructions,” “combinations” or “assemblages”; or alternatively to quell any “domestic violence” or “conspiracy” that impedes the enforcement of constitutional rights or even “the course of justice” under federal law.
The Insurrection Act has been invoked a more than two dozen times in American history. Presidents have relied on it, for example, to respond to riots (as President George H.W. Bush did in 1992 in response to violent protests following the failed prosecution of the police officers who beat Rodney King) and to meet defiance of federal law (as Presidents John F. Kennedy and Dwight Eisenhower did to enforce court-ordered desegregation of public schools in Southern states).
The problem is that the act has very broad and imprecise triggers to its operation and no temporal constraints, and it does not specify any role for Congress to assess, shape or limit the president’s response to an emergency. It is in many respects like the Electoral Count Act, which Congress by large bipartisan majorities revised in 2022 to govern the final tally of the state electoral votes for presidents and vice presidents: a statute widely recognized to be poorly designed and clearly susceptible to harmful misinterpretation and application, yet left on the books for too long because the dangers it presented had not yet come to pass.
Both major political parties in Congress supported Electoral Count Act reform last year and now appear to support broad emergency power reform in other contexts. For the same general reasons, Democrats and Republicans should want to deny any president unchecked authority to use the military in the homeland.
There is no serious dispute, on the merits, that the Insurrection Act gives any president far too much unchecked power. It is hard for anyone to argue that a president should be able to unleash U.S. troops or state militias without any accountability beyond public opinion or impeachment.
Also, reform of the act gives no inherent advantage to one party over the other. We hear much now about Mr. Trump’s potential use of troops at home, but in our polarized society it is easy to imagine each party fearing that a president affiliated with the other may use this tool to his or her political advantage — especially once a president sets a precedent by invoking it aggressively for this reason. In a norm-busting era, Congress should check this foreseeable tit for tat now.
Republicans should have particular interest in Insurrection Act reform, despite the current focus on Mr. Trump. Many members of the Republican Party have been worried about possible politicization of the military, as well as the Pentagon’s recruitment and retention difficulties. As military leaders have long understood, few things politicize the military more than its deployment for domestic control.
Tightening the Insurrection Act would also check abuses of the statute to trample on traditional state law enforcement prerogatives. The act gives presidents full license to call out the military or the militia if they unilaterally conclude that they must enforce state laws because the president determines that the states themselves “are unable, fail or refuse” to do so.
Insurrection Act reform has many potential moving parts. There are three vital elements.
First, Congress should tighten the triggers to presidential invocation of the act. It should eliminate vague and obsolete terms like “assemblage” and “combination”; clearly define other terms like “insurrection” and “domestic violence”; and narrow the president’s seemingly boundless discretion to determine when the act’s triggers are satisfied.
Second, it should require the president to consult with state and local authorities to ensure that troop deployment is needed to address a serious threat to safety; to make findings to that effect; and to report to and consult with Congress on a regular basis.
Third, and perhaps most important, Congress should place a relatively short sunset provision on a president’s invocation of the act — weeks, not months — subject to additional short-term continued deployments approved by Congress. This is where the rubber meets the road, since Congress might not approve the president’s continued use of the military.
But any threat that justifies using the military for domestic law enforcement should be severe enough for majorities of Congress to approve the action, and the dangers of presidential abuse here outweigh the dangers of congressional gridlock.
Amending the Insurrection Act along these three dimensions addresses the primary concerns with the statute without veering off into more contested issues that might make it harder for the parties to find common ground. Yet these simple changes would constitute a historic reform and would be far better than no reform at all. The primary and urgent task is to bring the core of the president’s promiscuous Insurrection Act authority to heel.
Bob Bauer, a professor of practice and distinguished scholar in residence at New York University School of Law, and Jack Goldsmith (@jacklgoldsmith), a law professor at Harvard, a senior fellow at the Hoover Institution and a former assistant attorney general in the George W. Bush administration, are chairs of the Presidential Reform Project and the authors of “After Trump: Reconstructing the Presidency.”
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